Income Tax Officer-2(4), Kanpur V. Uday Chand Jain, Kanpur

ITA 560/LKW/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83441 (ITAT-LUCKNOW)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 13-10-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 03-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Gift
• Section: 69

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.560/LKW/2014 ASSESSMENT YEAR:2008 - 09 SHRI UDAI CHAND JAIN, C/O DEEP CHAND NARESH CHAND, 76/158, HALSEY ROAD, KANPUR. PAN:AANPJ5652J VS INCOME TAX OFFICER - 2(4), KANPUR. (RESPONDENT) (APPELLANT) SHRI O. N. PATHAK, D. R. APPELLANT BY SHRI RAKESH GARG, ADVOCATE RESPONDENT BY 13/10/2014 DATE OF HEARING 10 /12/2014 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - II, KANPUR DATED 24/03/2014 FOR THE ASSESSMENT YEAR 2008 - 2009. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE GENUINENESS OF THE ISOLATED GIFT OF RS.20,00,000/ - , MADE TO THE ASSESSEE WITHOUT ANY RECIPROCITY AND WITHOUT ANY SOCIAL OCCASION OR COMPULSI ON, WAS NOT ESTABLISHED SATISFACTORILY. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN IGNORING THE PRINCIPLES ENUNCIATED BY THE HON'BLE SUPREME COURT IN 214 ITR 801 IN THE CASE OF SUMATI DAYAL VS. CIT AN D CIT VS. DURGA PRASAD MORE IN 82 ITR540 THAT IN TAXATION MATTERS, HUMAN PROBABILITIES AND CONDUCT HAVE TO BE CONSIDERED. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN IGNORING THE FACT THAT THE FINANCIA L CAPACITY OF THE DONOR HAD NOT BEEN 2 ESTABLISHED AND THE ASSESSEE HAD NOT FURNISHED COMPLETE CONFIRMATIONS FROM THE DONOR FOR TOTAL GIFTED AMOUNT. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR DATED 24.03.2014 BEING ERRONEOUS IN LAW AND ON FACTS, BE QUASHED AND THE ORDER DATED 31/12/2010 PASSED BY THE ASSESSING OFFICER BE RESTORED. 3. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THIS ISSUE WAS DECIDED BY CIT(A) BY MAKING FOLLOWING OBSERVATION ON PAGE NO. 10 & 11 OF HIS ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - DECISION: I HAVE CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE. SHRI ANIL KUMAR JAIN, THE DONOR IS THE REAL BROTHER - I N - LOW OF THE APPELLANT. THE ELDER SISTER OF THE APPELLANT MS. NANDNI JAIN IS MARRIED TO SHRI ANIL KUMAR JAIN. SHRI ANIL KUMAR JAIN IS RESIDING I N THE G ULF COUNTRIES SINCE THE YEAR 1993. AT PRESENT HE IS EMPLOYED WITH ABU DHABI COMPANY FOR ONSHORE OIL OPERATIONS, UAE (ADCO) ON A MONTHLY OF AED. 34304 / - PER MONTH EQUIVALENT TO RS.5,00,000 / - PER MONTH APPROXIMATELY. HIS COMPLETE NAME AND ADDRESS AS W ELL AS TELEPHONE AND E - MAIL IS AVAILABLE ON THE DECLARATION - CUM - CONFIRMATION NOTE. I HAVE PERUSED THE BANK ACCOUNT STATEMENT AND FIND THAT THERE ARE NO CASH DEPOSITS IN THE BANK ACCOUNT. ALL AMOUNTS DEPOSITED IN THE BDFC NRE ACCOUNT NO. 4 4910600000016 AS R EFERRED TO B Y THE A.R . REPRESENT AMOUNT TRANSFERRED/REMITTED FROM OVERSEAS BANK ACCOUNT. THE ACCOUNT WITH HDFC IS A TWO IN ONE ACCOUNT I.E. SAVINGS AS WELL AS FIXED DEPOSIT. SHRI ANIL KUMAR JAIN IS ASSESSED TO TAX AS NRI VIDE PAN AAIPJ9458K WITH INCOME T AX OFFICER, BHOPAL EVER SINCE A.Y. 1993 - 94. ON GOING THROUGH THE BANK STATEMENT, IT CAN WELL GAUGED THAT SHRI ANIL KUMAR JAIN, IS MAN OF MEANS. THE TOTAL INWARD REMITTANCES FROM OVERSEAS BANK ACCOUNT TO HDFC NRE BANK ACCOUNT EXCEEDS RS.100 LACS , TH E DETAIL S OF WHICH ARE AVAILABLE IN THE BANK STATEMENTS. THE SAID REMITTANCES COVER THE AMOUNT OF GIFT MADE SEVERAL FOLDS. 3 THE EVIDENCES FILED BY THE AR ARE THE COPY OF THE PASSPORT, BEARING PASSPORT NO.Z1448018, PLACE OF ISSUE KUWAIT AND DATE OF ISSUE IS 11.09.2005, COPY OF THE BANK STATEMENT BOTH IN RESPECT OF SALARY AS WELL AS FAST SAVER ACCOUNT WITH RAK BANK, ABUDHABI, UAE, DETAILS OF THE CHEQUES , COPY OF THE BANK ACCOUNT WITH HDFC BANK SA G AR NRE ACCOUNT, THE LATEST SALARY CERTIFICATE OF THE EMP LOYER OF THE DONOR , CERTIFICATE FROM THE CONSULATE GENERAL OF INDIA , DUBAI CERTIFYING THAT SHRI ANIL KUMAR JAIN , DONOR IS NRI FOR 18 YEAR CONTINUOUSLY SINCE 1993. A COPY OF THE DECLARATION CERTIFYING THE GIFT MADE. NONE OF THE EVIDENCES HAVE BEEN DO UBTED OR DISBELIEVED. THERE IS NO MATERIAL ON RECORD TO CONTROVERT THAT SHRI ANIL KUMAR JAIN IS FINANCIALLY A MAN OF MEANS. LOOKING TO HIS BANK ACCOUNTS AND THE DECLARATION FILED BY HIM, IT CAN SAFELY BE CONCLUDED THAT SHRI ANIL KUMAR JAIN IS EARNING H ANDSOMELY AND HAS ENOUGH SAVINGS, THE FACT THAT IN THE INSTANT CASE THERE IS A VERY CLOSE RELATIONSHIP AND THE DONOR'S WIFE IS THE BROTHER OF THE ASSESSEE, BEYOND DOUBT. I AM FULLY SATISFIED THAT IN VIEW OF THE PLETHORA OF EVIDENCES, FILED BY THE ASSESSEE ALONG WITH CONFIRMATION AND THE DECLARATION FROM SHRI ANIL KUMAR JAIN, THERE IS HARDLY ANY REASON TO DOUBT THE GENUINENESS OF THE GIFT. AS REGARDS THE OCCASION OF THE GIFT, IT HAS BEEN MENTIONED BY SHRI ANIL KUMAR JAIN THAT THE SAID GIFT WAS ONLY ON ACCOU NT OF LOVE AND AFFECTION, TO HELP THE APPELLANT RECOVER FROM HIS FINANCIAL DISTRESS. AS REGARDS THE RECIPROCITY OF THE GIFT, I SEE NO REASON TO DISBELIEVE OR DOUBT THE GENUINENESS OF THE GIFT. BOTH RECIPROCITY AND OCCASION OF THE GIFT HAVE NO MEANING IN TH E INSTANT CASE, FOR THE REASON THAT THE GIFT IS BETWEEN THE REAL KITH AND KIN. AS REGARDS THE DEBIT BALANCE IN THE NRE ACCOUNT, I AGREE WITH A.R. THAT THE NATURE OF THE ACCOUNT BEING THAT OF TWO IN ONE. THE BANKS THESE DAYS TRANSFER AMOUNTS FROM REGULAR 58 ACCOUNT TO FIXED DEPOSIT ACCOUNT AND VICE VERSA DEPENDING UPON THE NEED OF THE APPELLANT. SUCH KINDS OF BANK ACCOUNT ARE QUITE COMMON AND ARE QUITE PREVALENT IN TODAY'S BANKING CONCEPT. KEEPING IN VIEW THE TOTALITY OF THE FACTS AND CIRCUMSTANCES, I AM OF THE CONSIDERED VIEW THAT THE APPELLANT HAS FULLY DISCHARGED HIS ONUS OF ESTABLISHING THE GENUINENESS, IDENTITY AND CREDITWORTHINESS OF THE GIFT, THEREFORE, THE ADDITION OF RS. 20 LACS MADE BY THE A.O. AS UNEXPLAINED INVESTMENT U/S 69 IS DELETED . THE OTHER GROUND RELATES TO ADDITION OF RS.4,000/ - PERTAINING, POSTAGE AND TELEGRAPH EXPENSES AND OTHER RELATED 4 EXPENSES. THE AO'S ACTION IS UPHELD AND THE ADDITION IS HEREBY CONFIRMED. 4.1 FROM THE ABOVE OBSERVATIONS OF LEARNED CIT(A), WE FIND THAT A C LEAR FINDING IS GIVEN BY LEARNED CIT(A) THAT SHRI ANIL KUMAR JAIN, THE DONOR, IS THE REAL BROTHER - IN - LAW OF THE ASSESSEE. HE HAS ALSO NOTED THAT THE ELDER SISTER OF THE ASSESSEE MS. NANDNI JAIN IS MARRIED TO SHRI ANIL KUMAR JAIN , WHO IS RESIDING IN THE GU LF COUNTRIES SINCE 1993 AND A T PRESENT , HE IS EMPLOYED WITH ABU DHABI COMPANY FOR ONSHORE OIL OPERATIONS, UAE (ADCO) ON A MONTHLY SALARY OF AED. 34304/ - PER MONTH EQUIVALENT TO RS.5,00,000/ - PER MONTH APPROXIMATELY. HE HAS ALSO GIVEN A FINDING THAT HE HAS EXAMINED THE BANK STATEMENT OF THE DONOR AND FOUND THAT THERE WAS NO CASH DEPOSITS IN THE BANK ACCOUNT . AFTER EXAMINING ALL THESE EVIDENCES, HE HAS GIVEN A CLEAR FINDING THAT HE IS FULLY SATISFIED THAT IN VIEW OF THE PLETHORA OF EVIDENCES, FILED BY THE ASSESSEE ALONG WITH CONFIRMATION AND THE DECLARATION FROM SHRI ANIL KUMAR JAIN, THERE IS HARDLY ANY REASON TO DOUBT THE GENUINENESS OF THE GIFT. THESE FINDINGS OF CIT(A) COULD NOT BE CONTROVERTED BY LEARNED D.R. O F THE REVENUE AND HENCE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). 5. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YAD AV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 10 /12/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR